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# The Attorney General of Texas

December 31. 1982 MARKWHITE Attorney

General

Supreme Court Building P. 0. BOX 12548 Austin. TX. 78711. 2548 5121475.2501 Telex 910/874-1367 Telecopier 5121475-0266

1607 Main St., Suite 1400 Dallas, TX. 75201-4709 2141742-8944

4824 Alberta Ave., Suite 160 El Paso. TX. 79905.2793 9151533-3484

1220 Dallas Ave.. Suite 202 Houston. TX. 77002-6986 713/650-0666

806 Broadway, Suite 312 Lubbock, TX. 79401.3479 8061747.5236

4309 N. Tenth. Suite S McAllen, TX. 78501-1665 5121682-4547

200 Main Plaza, Suite 400 San Antonio, TX. 78205.2797 5121225-4191

An Equal Opportunity/ Affirmative Action Employer HonorableHenry DallasDistrict 601 Elm Street Dallas,Texas

Dear Mr. Wade: Wade

Attorney 75202 OpinionNo.MIJ-574
Re: Procedure for tasting microfilms of records filed with county clerks, and relatedmatters

You have asked several questions about the construction to be given article 1941(a), V.T.C.S., following its amendment in 1979. First, you ask if a county clerk can make microfilm records under section 6, subsections (a). (b) and (c) of the statute without necessarily reproducingfrom themicrofilm (andmaintaining forpublic use) a set of paper records. Before 1979, the law imposed a special duty upon county clerks who microfilmed original records that were not to be retained in the clerk's files. Clerks were under a duty to test the accuracy and clarity of the microfilm image by reproducing from the microfilm a paper copy of the record filmed. After the reproduced microfilmed version of an originaldocumenthad been inspectedand checked in that manner and found satisfactory, the law made it the duty of the clerk to return the original to the party who filed it. The statute then (as now) specified that records transferred to the state librarian pursuant to state law "need not be reproduced." See Acts 1977. 65th Leg., ch. 463, 99, at 1201.
In 1979, pertinent parts of the statutewere amended so that it now reads:
Sec. 6. (a) Each county clerk and county

recorderand clerk of county courts,whenever the originalpaper record is not retained in the files of the county clerk, shall inspect and check each filmed image on each roll of microfilm, or each

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each roll of microfilm, or each filmed image of the discrete group of filmed images, for the purpose of inspecting and checking each filmed image for accuracy and clarity. Should a microfilm image be defective in any respect, the original instrument of writing, legal document, paper or record, from which said defective filmed image was made, shall be remicrofilmed on a subsequent roll of microfilm, or on a subsequent discrete image or images of a subsequentdiscrete group of individual Images, to obtain acceptable images on microfilm. A record need not be reproduced if it is transferred to the custody of the state librarianpursuant to state law. (b) Notwithstanding anything to the contrary providedby any other statuteor statutes,when an instrument of writing, legal document, paper, or recordhas beenmicrofilmedand saidmicrofilmhas been proven satisfactory by inspecting and checking as provided herein, said clerk is hereby authorized to, and shall, return each such instrument of writing, legal document, paper or record, excepting those involved in or relating to court matters and proceedings, to the party or partieswho filed it. (Emphasisadded). The new statutory languagemakes the intentclear,we think, that county clerkswho microfilm recordsno longerneed reproduce (orkeep) a set of paper records from the microfilm in order to test the accuracy and clarity of the filmed image. The legislativehistory of Senate Bill No. 316, which effected the changes, confirms that conclusion. See Acts 1979, 66th Leg., ch. 254, at 538; Bill Analysis to S.B. NT 316, prepared for the Senate Committee on Intergovernmental Relations, filed in Bill File to S.B. No. 316. LegislativeReferenceLibrary.
The sentence retained in subsection (a) that makes reproduction of a record unnecessary if it is transferred to the custody of the state librarian does not compel a different view. In its present context,we believe it is intended as a guide to those county clerks who choose to reproducemicrofilmed imagesonto paper records; it does not mean thatmicrofilmed recordsmust be reproducedon paper if they are not transferred to the state archives. The intention of the legislature is the dominant consideration in construing a statute. Calvert v. British-American Oil Producing Company, 397 S.W.2d 839 (Tex. 1965). In our opinion, the legislature clearly intended in subsections (a) and (b) to make optional with each county clerk the

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reproduction of records onto paper from microfilm for purposes of testing themicrofilm image. Subsection (c) of section 6 dealswith records relating to court matters and proceedings. It reads:

(c) Original instruments of writing, original legal documents, original papers and original records,which have been filed relating to court matters and proceedings and which have been recorded on microfilm records, shall be retained in the files of the docket to which they relate until a written order of the court closes such docket, after which all of the records in such docket shall be microfilmed in time sequence to provide all of such records of a docket in an unbroken continuous sequence on one roll of microfilm, or in an unbroken continuous sequence of discrete images in a group of discrete images. This subsectioncontemplatesthat originaldocumentsrelating to court matters and proceedingswill be retainedby the clerk until the court closes the docket to which they relate, even though they have been microfilmed. After the docket is closed, it requires that they be microfilmed (again) in a manner to provide -- on microfilm -- a continuous sequence of the records pertaining to the closed docket. It does not require the clerk to employ themicrofilm-to-papertesting proceduremandatedby the statuteprevious to its amendment.
You also ask whether any paper records that are reproduced by clerks from microfilm can be destroyedbefore the expiration of five years. There is no requirement in thepresent statute that clerks retain we= records that they may have reproduced from microfilm for purposes of inspectionand checking themicrofilmed image. Subsection (d)of section 6 does specify that the commissionerscourt of a county may order the disposal of the originaln paper records from which the microfilm recordswere made only after microfilm filmprints" froman "originalnegativemicrofilm"meeting certain standards are certified as having been satisfactorilyused by the public for five years or more. But, in our opinion, the term "microfilm film prints" includes copies of microfilm produced on film as well as on paper. See National Center for State Courts,Microfilm and the Courts: Guidefor CourtManagers 13, 14, 52 (1976). Moreover, the requirementdoes not mean that the clerk must have reproduced paper records from the microfilmand retained them forpublic use. Itmeans only that prints of the records, when requested by the public, must have been satisfactorilyreproduced from the originalmicrofilmnegative.

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Inasmuch as subsection (b)of section 6 plainly contemplates the return of original documents (exceptthose involved in or relating to courtmatters and proceedings) to the personwho filed themas soon as the inspection and checking required by subsection (a) have been satisfactorilycompleted,the only "filed" records towhich subsection (d) can have applicationare instrumentsof writing, legal documents, papers or records relating to court matters or proceedings [k, those addressedby subsection (c)l. One of your questions has to do with when a county clerkmay dispose of such original court records. We answer that the clerk may dispose of them only after the commissionerscourt has entered an order directing their disposition, such order being conditioned, among other things, upon certification by the clerk that microfilm film prints of the original records have been satisfactorilyusedby thepublic for at least fiveyears.
Your remaining question concerns the term "microfilm film prints," the meaning of a matter we have already discussed. S.Sl? generally H.G. Jones,Local GovernmentRecords 64 et seq. (1980).
SUMMARY County clerks are not required to reproduce a set of paper records from microfilms of original records in order to inspectand check the accuracy and clarity of themicrofilm image,but may do so. If such paper prints are made, there is no requirement that they be kept. Original court records filedwith the clerk cannotbe disposed of except on certification, inter alla, that microfilmprints of the original recordshave been satisfactorily used by the public for at least fiveyears.
Azs

MARK WHITE Attorney General of Texas
JOHNW. FAINTER,JR. FirstAssistantAttorneyGeneral
RICHARD E. GRAY III ExecutiveAssistantAttorney General Preparedby BruceYoungblood AssistantAttorneyGeneral

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APPROVED: OPINION COMMITTEE
SusanL. Garrison,Chairman Jon Bible Kate Conroy Rick Gilpin PatriciaHinojosa Jim Moellinger BruceYoungblood

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